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National Court of Papua New Guinea |
[PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP. NO. 36 of 2017
IN THE MATTER OF A DISPUTED RETURN FOR THE YANGORU SAUSSIA OPEN ELECTORATE
BETWEEN
PETER WARARU WARANAKA
Petitioner
AND
RICHARD MARU
First Respondent
AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: Kandakasi, J.
2018: 31st May
21st June
ELECTION PETITIONS – Objection to competency – Pre-requisites – Petition based on bribery and undue influence - Essential elements of bribery and undue influence – Matters that must be pleaded – Certain essential elements including the essential element of the wining candidate being a “candidate” not pleaded – Conduct complained of were by persons other than the winning candidate - Effect of – Insufficient pleading for ground based on bribery and undue influence by the wining candidate – Petition incompetent - Sections 3(1), 208 (a) and s.215 (1) a and 218 of Organic Law on National and Local-level Government Elections.
ELECTION PETITIONS – Objection to competency – Pre-requisites – Petition based on errors, omissions, illegal practices and irregularities – Conduct complained of by persons other than the winning candidate - Effect of - No pleading with particulars of winning candidate knowing or authorising errors, omissions, illegal practices or irregularities by third parties – Need to plead winning margin by reference to total votes collected by winning candidate and his runner up – Failure to so plead – No foundation in the pleadings demonstrating it is fair and just to declare the winning candidate not duly elected and or void his election – Sections 208(a) and s.215 (3) and 218 of Organic Law on National and Local-level Government Elections.
ELECTION PETITIONS – Pre-requisites - Time bar – Objection to competency – Reckoning time from the date of declaration of results – Time cannot be reckoned in the same way as other causes of action but under the Organic Law on National and Local -Level Government Elections - Petition received outside official registry hours – Effect of – Petition filed the next working day – Effect of – Petition filed out of time – Petition incompetent - Section 208 (e) Organic Law on National and Local-level Government Elections.
ELECTION PETITION – Objection to competency - Pleadings – Petitioner required to plead clearly, coherently and logically – Failure to so plead - Inconsistent prayer for relief – Effect of – Petition incompetent - Section 212 Organic Law on National and Local-level Government Elections.
ELECTION PETITION – Objection to competency – Pre-requisite – Need to state attesting witnesses occupation – Petition stating witness’s occupation as “self-employed” – Insufficient statement of attesting witness’ occupation - Effect of – Petition incompetent - Section 208 (d) of Organic Law on National and Local-level Government Elections.
WORDS AND PHRASES – “Candidate” - Meaning of for the purposes of the Organic Law on National and Local-level Government Elections – A person who has completed all the formalities and or requirements for nomination for an election and announces publicly his or her candidature – Sections 212
WORDS AND PHRASES – “Occupation” – Meaning of for the purposes of the Organic Law on National and Local-level Government Elections – Ordinary meaning – Means to include a profession and what one does to earn a living – Whether “self-employed” falls within the meaning of – Too vague – Would be sufficient if additional qualification such as self -employed carpenter, self-employed motor mechanic etc. - Section 208 (d) of Organic Law on National and Local-level Government Elections.
Papua New Guinea Cases cited:
Delba Biri vs. Bill Ninkama [1982] PNGLR 342.
Sir Arnold Amet v. Peter Yama (2010) SC 1064.
Mathias Ijape vs. Biri Kimisopa, (2003) N2344.
Michael Kandiu v. Hon Powes Parkop (2015) SC1437.
John Kekeno v. Philip Undialu (2015) SC1428.
Ken Fairweather v. Jerry Singirok (2013) SC1279.
Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1251.
SC Review No 1 of 1990; Re Recount of Votes [1990] PNGLR 441.
SCR No 5 of 1988 Applications of Kasap and Yama [1988–89] PNGLR 197.
Empraim Apelis v. Sir Julius Chan (1998) SC573.
Sai Sail Beseoh v. Yntivi Bao (2003) N2348.
Francis Koimanrea v. Alois Sumunda (2003) N2421.
Dick Mune v. Anderson Agiru & Ors (1998) SC590.
James Yoka Ekip v. Gordon Wimb & William Duma (2012) N4899.
Kopoal v. Embel (2008) N3319.
Joel Paua v. Robert Nagle [1992] PNGLR 563.
Mathias Karani v. Yawa Silupa (2003) PNGLR 9.
Baki Reipa v. Yuntivi Bao [1999] PNGLR 232.
Luke Alfred Manase v. Don Pomb Polye (2009) N3718.
Robert Kopaol v. Philemon Embel (2003) SC727.
Bourne v. Voeto [1977] PNGLR 298.
Luther Akisawa Wenge v. Kelly Naru (No 2) (2013) N5123.
Andrew Kumbakor v. Joseph Sungi (2012) N5002.
Powes Parkop v. Wari Vele (No 1) (2007) N3320.
Anton Yagama v. George Wan and The Electoral Commission (1997) N1692.
Philip Kikala v. Electoral Commission (2013) SC1295.
Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980.
Agonia v. Karo [1992] PNGLR 463.
Peter Isoaimo v. Paru Aihi & Electoral Commission (2012) N4921
Soro Marepo Eoe v. Mark Ivi Maipakai & Ors, (2013) N5066
Jim Nomane v. Wera Mori (2013) SC 1242
Allan Ebu vs. Roy Evara [1983] PNGLR 201
Roger Palme vs. Micheal Mel (1989) N808
Jim Nomane vs. Wera Mori (2013) N5059
Jerry Singirok vs. Ken Fairweather (2014) N5577
Brian Kramer vs. Nixon Duban (2013) N5213
Sir Peter Lus vs- Gabriel Kapris (2003) N2326
Neville Bourne v. Manasseh Voeto [1977] PNGLR 298
Ludger Mond v. Jeffery Nape (2003) N2318
Charles Luta Miru v. David Basua & Ors (1997) N1628
Kelly Kilyali Kalit v. John Pundari and The Electoral Commission (1998) SC569
Labi Amaiu v. Andrew Mald and Cyril Retau and the Electoral Commission of PNG (2008) N3334
Dr Benedict Pisi v. Sam Akoitai and The Electoral Commission (1997) N1694
Labi Amaiu v. John Kaupa (2017) N7004
Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: EP No 37 of 2012 (Unnumbered & Unreported Judgment of 6th March
2015)
Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: SCRev (EP) No 2 of 2015 (Unnumbered & Unreported Judgment of
29th May 2015).
Paru Aihi v. Peter Isoaimo (2013) SC1276
Conrad Haoda v. Aide Ganasi (2013) N5136
Greg Mongi v Bernard Vogue (1997) N1635
Peter Launa v. Yauwe Riyong (1997) N1620
Re William Wii SCR No 45 of 1994, 26.07.94 (unreported)
David Lambu v Peter Ipatas (1998) N1701
Korak Yasona v Castan Maibawa (1998) SC552
Assik Tommy Tomscoll v Ben Semri (2003) N2349
Ludwig Patrick Shulze (1998) SC572
Nathan Piari v. Peter Ipatas (2014) N5969
Nick Kopia Kuman v. Dawa Lucas Dekena & Electoral Commission (2013) N5429
John Warisan v. David Arore (2013) N5217
Albert Karo v. Lady Carol Kidu [1997] PNGLR 28
EP No. 75 of 2012, Peter Waieng v. Tobias Kulang and Electoral Commission (March, 5 & 8, 2013)
Parua Aihi v. Sir Moi Avei (2003) SC720
Re Herowa Agiwa [1993] PNGLR 136
Charles Miru v. David Basua and Ors, (2013) N1628
Dr Bob Tawa Danaya v. Ati Wobiro (2013) SC1292
Puaria v. Lera (2013) N5148
Apaso Winch L Oibotee v. Benny Allen (2013) N5155
Sali Subam v. Aide Ganasi (No.1) (2012) N5068
Steven Pirika Kamma v. John Itanu (2007) N3246
Peter Isoaimo v. Paru Aihi & Electoral Commission (2012) N4921.
Soro Marepo Eoe v. Mark Ivi Maipakai & Ors, (2013) N5066.
Allan Ebu vs. Roy Evara [1983] PNGLR 201.
Roger Palme vs. Micheal Mel (1989) N808.
Jim Nomane vs. Wera Mori (2013) N5059.
Jerry Singirok vs. Ken Fairweather (2014) N5577.
Brian Kramer vs. Nixon Duban (2013) N5213.
Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980.
Sir Peter Lus vs. Gabriel Kapris (2003) N2326.
Neville Bourne v. Manasseh Voeto [1977] PNGLR 298.
Ludger Mond v. Jeffery Nape (2003) N2318.
Charles Luta Miru v. David Basua & Ors (1997) N1628.
Kelly Kilyali Kalit v. John Pundari and The Electoral Commission (1998) SC569.
Labi Amaiu v. Andrew Mald and Cyril Retau and the Electoral Commission of PNG (2008) N3334.
Dr Benedict Pisi v. Sam Akoitai and The Electoral Commission (1997) N1694.
Labi Amaiu v. John Kaupa (2017) N7004.
Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: EP No 37 of 2012 (Unnumbered & Unreported Judgment of 6th March
2015).
Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: SCRev (EP) No 2 of 2015 (Unnumbered & Unreported Judgment of
29th May 2015).
Conrad Haoda v. Aide Ganasi (2013) N5136.
Peter Launa v. Yauwe Riyong (1997) N1620.
Re William Wii SCR No. 45 of 1994 26.07.94 (unnumbered and unreported).
Lambu v Peter Ipatas (1998) N1701.
Korak Yasona v Castan Maibawa (1998) SC552.
Application by Ludwig Patrick Shulze (1998) SC572.
Nathan Piari v. Peter Ipatas (2014) N5969.
Albert Karo v. Lady Carol Kidu[1997] PNGLR 28.
Bryan Kramer v. Nixon Philip Duban (No.2) (2013) N5213.
EP No. 75 of 2012, Peter Waieng v. Tobias Kulang and Electoral Commission (March, 5 & 8, 2013).
Re Herowa Agiwa [1993] PNGLR 136.
Dr Bob Tawa Danaya v. Ati Wobiro (2013) SC1292.
Puaria v. Lera (2013) N5148
Apaso Winch L Oibotee v. Benny Allen (2013) N5155
Sali Subam v. Aide Ganasi (No.1) (2012) N5068
Counsel:
P. Mawa, for the First Objectioner/ First Respondent
H. Nii, for the Second Objectioner/Second Respondent
J. Alman, for the Respondent/Petitioner
21st June, 2018
1. KANDAKASI J: This is an election petition by Peter Wararu Waranaka (the Petitioner) against the election victory of Honourable Richard Maru (the First Respondent) in the 2017 National General Elections for the Yangoru Saussia Open Electorate. The petition is, based on grounds of bribery, undue influence, illegal practices, errors, omissions and irregularities. Both the Electoral Commission and the First Respondent (the Respondents) took issue with the competency of the petition. They raised the following grounds:
(1) the petition being filed out of time;
(2) a lack of proper pleadings;
(3) a failure to disclose the occupation of one of the two attesting witnesses; and
(4) seeking inconsistent reliefs.
Hearing and verbal decision
2. On 31st May 2018, I heard and decided to uphold the objections and ordered a dismissal of the petition for being incompetent. I verbally gave my full reasons for the decision at the time of giving my decision and did not contemplate publishing any written judgment. However, counsel asked for a written version of the reasons for my decision as they claimed certain important aspects of the reasons for the decision warrant publication for posterity purposes. I agreed to counsel’s request. Here now is a written version of the decision.
Starting point for election petitions
3. I was mindful at the very outset of the hearing of the petition and in the cause of giving my decision that, the starting point in all election petitions are the mandatory requirements of s. 208 because of the provisions of s. 210 of the Organic Law on the National and Local Level Government Elections (Organic Law). Included in that starting point is the interpretation and application given to these provisions by the Courts led by the often-cited authority and decision in Delba Biri vs. Bill Ninkama.[1] Many subsequent decisions of the Supreme and National Courts like the one in Sir Arnold Amet v. Peter Charles Yama[2] have followed Biri v. Ninkama, consistently restated the law and have applied the relevant principles.
4. At page 345 of its decision the Supreme Court in Biri v. Ninkama held:
“In our view, it is clear that all requirements in Section 208 and Section 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a constitutional law. Section 210 simply precludes any proceedings unless Section 208 and Section 209 are complied with. In our opinion, it is beyond argument that if a Petition does not comply with all or any of the requirements of s.208 of the Organic Law on National Elections then there can be no proceedings on the Petition because of s.210, of the Organic Law.”
5. The Court described the rationale behind the mandatory nature of s. 208 in terms of:
“....the statute has clearly expressed it’s intention that a petition must strictly comply with Section 208. It is not difficult to see why. An election petition is not an ordinary cause and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislator as accordingly laid down very strict provisions before they can be any challenge to the expression of the will of the majority.”
6. In my decisions in a number of election petitions such as the one in the case of Mathias Ijape vs. Biri Kimisopa[3], I have taken this statement of the law to mean:
“... the prerogative belongs to the majority in an electorate to elect their representative to Parliament. It is a sacred right. Once that choice is made in a fair and free election, it can only be challenged strictly in accordance with the requirements of the Organic Law which grants a right to a person aggrieved by an election to challenge it.”
7. The Supreme Court in its later decision in the Sir Arnold Amet v. Peter Charles Yama case, endorsed the decision in Biri v. Ninkaman and restated the rational for the law in its own words as follows:
“It is often stated that the electoral process whereby a representative of the people is chosen in a free and fair electoral process conducted at great public expense and often under extreme conditions must be upheld, unless real cause can be shown that, that process should be overturned. It is presumed, the election process was properly and legitimately conducted and that electors made their choices in the free exercise of their franchise. So, such a serious matter as to challenge a popular choice at the elections, calls for clear and defined statements of allegations relied upon. This is the underlying principle of law behind s. 208 of the Organic Law as averted to by the Supreme Court in Delba Biri v. Bill Ninkama [1982] PNGLR 342”.
Objections in summary
8. The Respondents’ objections were identical. They fell under two broad categories namely:
(1) general incompetence; and
(2) incompetency attending the specific pleadings of the grounds for the petition.
9. Under the first category falls objections based on the following:
(1) the petition being filed out of time by 2 days or alternatively by 1 day;
(2) a complete failure to plead the total number of votes collected by the winner of the election, his runner up’s and the total winning margin;
(3) pleading inconsistent prayers for reliefs; and
(4) failing to properly plead the “occupation” of one of the attesting witnesses.
(1) Failure to plead winning margin
10. I dealt with the first category of the objections first. This was because, therein lied the first and one of the most important reasons for upholding the objections and ordering a dismissal of the petition. Learned counsel, Mr. Alman appearing and arguing for the Petitioner conceded to the petition failing to plead the total number of votes secured by the First Respondent as the winning candidate, the total number of votes secured by his runner up and the total winning margin working between those two ends. Owing to this lack in the pleadings, learned counsel for the Petitioner also conceded that the petition could not proceed any further. The concession by learned counsel was correct and proper. Here is why. The law in this respect is clear. There is a long list of Supreme and National Court judgments on point. The following passage from the decision of the Supreme Court in Sir Arnold Amet v. Peter Charles Yama should suffice for an authority on point:
“So, it must be pleaded that the illegal practice or conduct of a supporter, agent or servant with his knowledge or authority was likely to affect the election results. It will be helpful too to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or likely to be affected. The view expressed by Kandakasi, J in Mond v. Mape & Ors (2003) N2318 is on point:
‘It is clear from this that if a petition alleges an illegal practice or conduct other than bribery or undue influence of a winner of an election, the petitioner must plead that the conduct was likely to affect the election result and show that. To do that, it is necessary in my view, to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected. This is in addition to pleading the facts constituting the conduct in question. A failure to do so would amount to a failure to meet the strict requirements under s.208 (a) and form the foundation for evidence to be led for a relief under s. 215 (3) (b). This is necessary because without the pleadings, no evidence can be led. After all, pleadings drive the evidence.’” [4]
11. The authorities make it clear that, a specific pleading of the winning margin between the winning candidate and the runner up by pleading the total number of votes secured by the winner and those secured by the runner up, is a necessary must. Meeting this requirement is in addition to pleading with sufficient particulars an illegal practice, error, omission or irregularity committed by persons other than the winning candidate which did or were likely to affect the result of the election and it is just that the winning candidate should be declared not to be duly elected or that the election should be declared void by reference to the pleaded winning margin. Many petitions based on illegal practices, errors, omissions or irregularities have turned on proper foundation being laid or lack thereof in the pleadings and if properly pleaded, followed through by appropriate evidence demonstrating that the results of elections have been or were likely to be affected by such conduct.
12. In the present case, there was no pleading that discloses the winning margin between the First Respondent who was the winning candidate and his runner up, a matter also not pleaded. Similarly, there was no pleading clearly showing how the various acts of illegal practice, errors, omission and irregulars stated in the petition were committed by the First Respondent or his servant or agents with his knowledge or authorisation. Likewise, there was no pleading clearly showing how the election results were affect by the poorly alleged, illegal practices, errors, omissions and irregularities and that it is just and fair that the results should be revisited and corrected. Counsel for the Petitioner did make reference to his client having the necessary evidence to prove his allegations. However, as can be gathered from the various case authorities on point and as correctly conceded by counsel for the Petitioner subsequently, no evidence can be called without any proper foundation in the pleadings. Hence, the alleged evidence without any foundation in the pleadings could not be of any assistance to the Petitioner. For after all, as already noted, the pleadings drive the evidence and not the other way around. Hence, without first getting the pleadings right, there can be no talk of and consideration of what evidence a petitioner has and will be calling to succeed in his petition. Without knowing what the winning margin was and without knowing the number of votes that were affected by the allegations of illegal practices, irregularities, errors and omissions and without knowing how the results of the election were or would likely be affected, it was going be an exercise in futility to allow the petition to progress to trial. As will soon be explained, this was the case, even though several grounds of the petition were based on allegations of bribery and undue influence.
(2) Lumping together of allegations of errors and omissions etc..
13. Learned Counsel for the Respondents submitted without any serious and meaningful response from the Petitioner’s learned counsel that, each of the grounds of illegal practice, errors, omissions and or irregularities should have been pleaded separately. Section 218 of the Organic Law is the foundational law on errors, omissions and irregularities attending an election outcome. The provision in question reads:
“218. Immaterial errors not to vitiate election.
(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.
(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.”
14. The Supreme Court defined the scope of errors and omission under s. 218 in the case of Ephraim Apelis v. Sir Julius Chan.[5] There, the Court said:
“We find that s.218 deals with errors and omissions of election officials dealing with the process of election starting with nominations, the polling, the declaration of poll or the return of writ.”
15. As to how an election petition should properly plead any such errors, omissions, irregularities and illegal practices, the decision of Injia J., (as he then was) in Sai Sail Beseoh v. Yntivi Bao[6] is relevant. There His Honour said:
“Section 218(1) has two parts. First, the delay, error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate clearly how that delay, error or omission did affect the result of the election. Mere pleading of the delay in the polling and errors and omissions will not suffice. Likewise, mere pleading that the result was affected will not suffice.”
16. In Francis Koimanrea v. Alois Sumunda[7], Sakora J. added:
“In relation specifically to allegations of errors and omissions relied on as a ground of a petition, the law requires that facts must be pleaded to show the nature of these errors and omissions. It must be emphasised that errors and omissions do not automatically void an election. Thus, even if these are established by evidence, it must be shown (by pleading and proving facts) that the result or results would have been affected.”
17. Additionally, some line of authority led by the decision of the Supreme Court in Dick Mune v. Anderson Agiru & Ors[8] speak of the need for a petitioner to plead also the relevant provisions of a statutory or constitutional law allegedly breached. In its own words the Court said:
“However, prudent pleading enables the court and the opposing party to be clear about the facts as well as the grounds constituted by those facts, upon which the election is sought to be invalidated. In certain situations, where the ground alleged is founded on a breach of statutory provision which confers a power or imposes a duty on a public official, it might become necessary to plead the relevant statutory provision referred to by the alleged facts. In other cases, simply pleading the facts alone may suffice. To simply plead the provision breached without supporting facts will not suffice.”
18. I accepted and applied these principles in my own decisions. An example such a decision is my decision in James Yoka Ekip v. Gordon Wimb & William Duma[9]. There I said:
“Where an allegation is founded on a breach of a law or a statutory provision, the facts disclosing or establishing the alleged breach much be stated and possibly a reference to the relevant provision of the Law. This is to enable the opposing parties and the Court to know what exactly is being alleged and they need to prepare for the defence or concede as the case might be.”
19. There are a host of other decisions like one in Kopoal v. Embel[10], per Salika J, (as he then was), Joel Paua v. Robert Nagle[11], per Justice Woods J and Mathias Karani v. Yawa Silupa[12], per Sawong J. (as he then was), which repeat and restate the law.
20. Further, one of the important requirements under s. 218 of the Organic Law on Elections is the need to plead and then later establish by appropriate evidence that the results of the elections were affected by an alleged, error, omission or irregularity. The foregoing discussions under the first reason for holding the petition incompetent and ordering its dismissal equally applies here. However, I add the decision of the Supreme Court in Baki Reipa v. Yuntivi Bao[13], to that discussion. There the Supreme Court said:
“On the subject of whether the loss of 466 eligible votes from the final poll could have affected the result where the winning margin was 411 votes, it is clear from the legislation that firstly the Court cannot make assessments of possible scenarios of where the votes may have gone. Also the authorities have made it clear that of course if the missing or lost votes total less than the winning margin then it cannot be said that the result of the election was likely to be affected. See Frost CJ in Gavera Rea .v. Rarua [1997] PNGLR 338, and Andrew J in Kamond .v. Pill 1993) unreported and Amet CJ in Poto .v. Mune (1994) unreported.
However as soon as the number of disputed or lost votes exceed the winning margin then as the court cannot make speculations on the basis of the number of candidates and the percentage of total votes to each candidate but it is always faced with the possibility that if the votes had gone a certain way then the result would have been affected then the criteria is satisfied. Elections and the validity of every vote are such serious matters that there can be no half measures.”
21. It should be clear now that, where the total number of votes secured by a winning candidate and that of the runner up which gives the winning margin is not pleaded in the body of a petition, it is difficult to determine on the face of the pleadings if the result of the election was in fact affected or likely to be affected. This is because the petition fails to provide the foundation to determine if the election’s results were affected. It should also be clear that each alleged error, omission or irregularity must be separately pleaded with sufficient particulars. The decision in Luke Alfred Manase v Don Pomb Polye[14] and Robert Kopaol v. Philemon Embel[15], are examples of many cases on point. These cases stand for the proposition that, a petitioner’s pleadings must be coherent, clear and complete and must avoid ambiguity, confusion and alternative pleadings. The reason for this is simple. Petitioners must know exactly the grounds for their respective petitions and must therefore not be equivocal about what they are alleging. Each ground relied upon to question an election outcome must be clearly and specifically pleaded as if it was the only ground relied upon. Where a petition fails to meet these requirements or lumps together all alleged illegal acts, errors omissions and or irregularities, stands the risk of giving rise to a lack of clarity leading to confusion, uncertainty and a lack of understanding of the basis for the petition which would render it incompetent and dismissed on that basis.
22. In the present case, the petition lumped together allegations of illegal practices, errors, omissions and irregularities into one lot of pleadings. This made the petition incoherent, unclear, incomplete and confusing. That formed the foundation for me to find the alleged grounds of errors, omissions, illegal practices and or irregularities offending the law by failing to plead these grounds separately with sufficient particulars and demonstrate how each of the grounds on their own or collectively affected the outcome of the Yangoru Saussia Open Electorate’s election outcome. Accordingly, I had no hesitation in finding the grounds covering illegal practices, errors, omissions and irregularities incompetent and consequently the petition incompetent. That formed the second reason for my decision to uphold the objections and order a dismissal of the petition.
(3) Each element of bribery not pleaded
23. These then, left me to deal with objections against the pleading of the other grounds of the petition. The first concerned the allegations of bribery. It is settled law that, unlike illegal practices, errors, omissions and irregularities, all it takes is one act of bribery or undue influence to upset a whole election outcome.[16] In order to arrive at such a result, the law requires, a petitioner to properly pleaded an act of bribery or undue influence affecting an election outcome by pleading facts that disclose a presence of each of the essential elements of bribery or undue influence. I was mindful of the fact that there are number of decisions of the Supreme and National Courts on point. It is sufficient for our purposes to refer to the decision of the Supreme Court in Paru Aihi v. Peter Isoaimo,[17] where I as a member of the Court with whom Hartshorn and Yagi JJ., agreed said:
“... it is established law in our jurisdiction that, a petition based on bribery must plead the essential elements of the offence of bribery alleged. These include the following:
(a) Date when the offence was committed;
(b) Name of the offender;
(c) Name of the person bribed
(d) The person bribed was an elector; and
(e) The bribe was offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate.”[18]
24. Earlier in the case of Agonia v. Karo[19] his honour Justice Sheehan said:
“In my view, the standard is not that demanding. Although the grounds in a petition charge a criminal offence, I do not believe it is necessary that a ground needs to be set out as if it were an indictment-desirable as that might be. The Court of Disputed Returns does not have the same focus as a criminal court. It is looking to the validity of an election and not whether a respondent is liable to a criminal penalty. There is also a difference of approach. The Criminal Court operates under strict rules of evidence, while by s 217 of the Organic Law this Court looks to the substantial merits of the petition without strict regard to rules of evidence.
Notwithstanding those differences, because’ an election petition is a very serious thing,’ because of the serious charges and consequences that petition engender, it is certainly necessary that any ground alleging a criminal offence must stipulate all the relevant material to establish such an offence. That includes the necessity to spell out in clear terms the elements of that offence.
In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, places, there must be allegation that this money, that property, or that gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case maybe, in the free voting of an election.”
25. Later in Peter Isoaimo v. Paru Aihi & Electoral Commission[20], which was upheld by the Supreme Court on review (Paru Aihi v. Peter Isoaimo (supra)), involved a ground of bribery under s.103 of the Criminal Code. His Honour Cannings J., said:
“Because of the high number of alternative elements this gives rise to a petitioner must specify what particular bribery offences are alleged to have been committed. In the present case, the petitioner argues that the first respondent committed bribery under section 103(a)(iii) and 103(d) of the Criminal Code.”
26. Subsequently, following his decision in the Peter Isoaimo matter, Cannings J., in Soro Marepo Eoe v. Mark Ivi Maipakai & Ors[21], added:
“...a petition must sufficiently specify the relevant provision of the Organic Law and the Criminal Code that is allegedly breached on an allegation of bribery and undue influence.”
27. A similar view was expressed by the Supreme Court in Jim Nomane v. Wera Mori. There the Supreme Court also in a case of bribery held:
“If a petition alleges that the successful candidate has committed the offence of bribery under section 103 of the Criminal Code, it is necessary to state which particular offence has been committed and its elements.”
28. In the present case, the petition at paragraph 1 in the statement of the relevant facts materially pleaded K50,000.00 was given by the First Respondent to 5 named persons who were servants and agents of the First Respondents and who were electors in the electorate. The pleadings also stated that this act was done at the Wewak Boutique Hotel between 10 am and 11 am on 18th April 2017. The purpose for giving these monies were for people of Handara Village to vote for the First Respondent. Then at sub-paragraphs (a) to (u) the Petitioner pleaded in similar terms at various locations, the persons who received the K50,000.00 distributed in various small amounts of K100 to K400 to several named and unnamed persons who were electors between 18th and 19th April 2017. The petition further alleged that the recipients of the monies were told in pidgin “‘kisim na givim lo Maru’ (take the money and vote for Maru)”.
29. These pleadings might appear sufficient, but several essential elements are missing for each of the allegations. There is no specific allegation:
(1) pointing out to the relevant provision of the Organic Law or the Criminal Code that were allegedly breached as required by the Jim Nomane v. Wera Morai (supra) line of cases;
(2) that the monies were offered by the First Respondent;
(3) that the First Respondent was a candidate for the relevant electorate during the alleged incidents of bribery; and
(4) that the reason the monies were given or offered were to get each of the named or unnamed persons to vote, or not to vote, or to otherwise interfere unlawfully with the election process and influence the outcome of the election in favour of the First Respondent.
30. Except for the third and fourth elements, these missing elements did not draw much controversy amongst the parties. In respect of the third element the First Respondent argued that he was not a candidate at or during the times each of the alleged instances of bribery are alleged to have taken place. The basis for this argument is this. The alleged offences of bribery took place between 18th and 19th April 2017. By that time, the First Respondent was not and could not have been a candidate, but he was the sitting Member of Parliament for the relevant seat. The petition relevantly fails to plead the material facts of the exact date of nomination of the First Respondent as well as the exact date, place and time when the First Respondent publicly announced himself as a candidate for election. The First Respondent points out that he nominated as a candidate for the Yangoru Saussia Open Electorate for the 2017 National Elections on 24 April, 2017. This means from that date, the First Respondent was a candidate for the 2017 National Elections and not before. This is critical because of the legal requirement that the offence must be committed by a “candidate” in the election to vitiate his election victory.
31. Parts II and XIII of the Organic Law provides that a “candidate” includes a person who within three (3) months before the first day of the polling period announces himself as a candidate for election as a Member of Parliament. This is of course subject to such a person formally nominating and his nomination form together with the prescribed nomination fee being accepted by the relevant Returning Officer on behalf of the Electoral Commission.
32. In Allan Ebu vs. Roy Evara[22], Bredmeyer J., (as he then was) considered this definition and said:
“To determine what the word candidate means in s.215 I ask: What does it mean generally in the Organic Law? and then; What special meaning does it have in Pts II and XVII? I consider the word candidate when used generally in the Organic Law means a person who has duly nominated in the correct manner under ss 82 and 84. He is required to submit a written nomination on a prescribed form (form 11) giving certain particulars of himself. The form must be lodged with the Returning Officer by a certain date accompanied by a K100 deposit. The form and manner of nomination is prescribed by law. When a person has nominated in that way he is a candidate, and prior to that he is simply an intending or prospective candidate.
Section 2, the interpretation section, is I consider based on that definition which I have given; that is a candidate is one who has formally nominated in the correct way before nominations close. Once nominated the candidate remains a candidate until the return of the writ. Section 2 is based on that definition, it assumes that definition, and extends it or widens it for the purposes of Pts II and XVII to a person who announces himself as a candidate in the three-month period before the commencement of polling. The prohibitions and offences contained in those two parts of the Organic Law not only apply to nominated candidates but also to announced candidates – that is those who have announced publicly within the three month period before polling that they intend to stand for election. The extended definition makes good sense. ... It would be foolish to allow a man to be appointed a returning officer if he is an announced candidate. Consider Pt XVIL. If the definition was not extended, an unscrupulous fellow for up to six weeks could avoid all the prohibitions of Pt XVII, for example as to the size of posters, hand bills, the method of advertisements etc. He could avoid it by delaying his nomination until the last day for nominations and he could thus have six weeks of unscrupulous campaigning ignoring all the “rules” contained in Pt XVII designed to ensure a fair election.”
33. The decision in Allan Ebu vs. Roy Evara has been cited with approval and applied in several subsequent cases. One such case is the decision in Roger Palme vs. Micheal Mel[23]. There, Woods J., adopted the ruling and the reasons given by Bredmeyer J, in the Allan Ebu vs. Roy Evara. The National Court in 2013, in the case of Jim Nomane vs. Wera Mori[24], followed the Allan Ebu vs. Roy Evara case and upheld an objection to competency, on the basis that the alleged offence of bribery took place on dates before the date of issue of Writs and before the date the candidate formally nominated as a candidate. However, when that decision went on review to the Supreme Court, the Supreme Court consisting of Cannings, Collier and myself came to a different view, which marked a departure from Allan Ebu vs. Roy Evara. In its decision in Wera Mori vs. Jim Nomane, the Supreme Court said:
“With respect, we consider that his Honour [Bredmeyer J] misinterpreted the definition of “candidate” in Section 3(1) of the Organic Law. The fact that the alleged act of bribery occurred two weeks before the writ was issued is not a relevant consideration. The question is whether the person who allegedly committed bribery has within the period of three months before the first day of the polling period announced himself as a candidate. The first day of the polling period was 23rd June, 2012. Three months before then is 23rd March, 2012. So the question becomes whether First Respondent had announced himself as a candidate in the three-month period from 23rd March to 23rd June. We consider that this fact was adequately pleaded. Ground 5.10 is upheld.”
34. Subsequently, Cannings J., who was a member of the Supreme Court in Wera Mori vs. Jim Nomane reverted to the position as enunciated in Allan Ebu vs. Roy Evara . That was in his honour’s decision in the matter of Jerry Singirok vs. Ken Fairweather[25]. There, is his honour reasoned:
“Bredmeyer J’s judgment was delivered in 1983. It was based on the original Organic Law, which was repealed and replaced by the current Organic Law in 1997. However the provisions of the original Organic Law that his Honour was interpreting and applying are replicated in the current Organic Law. His Honour’s reasoning remains pertinent. It has never been overruled by the Supreme Court. In fact the only reference to it appears to have been in the recent decision in Jim Nomane vs- Wera Mori (2013) SC1242 (Kandakasi J, Canning J, Collier J,) which did not, however, involve a detailed examination of it.”
35. In so doing, his honour disagreed with a position taken by his honour Gavara-Nanu J., in the case of Brian Kramer vs. Nixon Duban[26] which was similar in effect to the Supreme Court decision in Wera Mori vs. Jim Nomane. There, his honour reasoned:
“It appears, however, that neither Bredmeyer J’s judgment in Ebu vs- Evara nor the limited application of the definition of candidate in Section 3, were brought to his Honour’s attention. I tend to think that if those matters had been highlighted, a different conclusion might have been reached. Whatever the case I am respectfully unable to agree with the approach his Honour took to determine this issue in Kramer vs- Duban. I find compelling the approach taken by Bredmeyer J in Ebu vs- Evara and that is the approach that I will take in this case. The petition will only succeed if the Petitioner can prove:
• that an offence of undue influence or bribery was committed or attempted to be committed by the First Respondent or another person (with his knowledge and authority) and
• that on the date the offence was committed or attempted to be committed the First Respondent had nominated as a candidate.”
36. The terms “candidate” is defined by s.3(1) of the Organic Law in the following terms:
“‘candidate’, in Parts II and XVII, includes a person who, within three months before the first day of the polling period, announces himself as a candidate for election as a member of the Parliament;”
37. The same provision then defines the phrase “polling period” in the following terms:
“‘polling period’, in relation to an election, means the period for polling the first and last days of which are specified in the writ for that election and includes any extension of that period granted under Section 176;”
38. Reading these two definitions together makes the definition given by Bredmeyer J., in Allan Ebu vs. Roy Evara more accurate. This is why many decisions of the Supreme and National Court decisions have readily followed the that decision. The only departure came from the Supreme Court decision in Wera Mori vs. Jim Nomane and the National Court decision in Brian Kramer vs. Nixon Duban. I agree with Cannings J., that the Supreme Court of which I was the president did not give any careful consideration to the decision in Allan Ebu vs. Roy Evara, its effect and impact on the many subsequent decisions that have followed it before arriving at its decision. If the Supreme Court did that, it would have concluded that Allan Ebu vs. Roy Evara is still good law. Accordingly, I accepted the submissions for me to depart from the Supreme Court decision in Jim Nomane vs. Wera Mori and return to the long establish view that the decision in Allan Ebu vs. Roy Evara is correct.
39. The effect of this analysis and therefore a proper understanding of the law means a petitioner must plead with sufficient particulars, that the ultimate wining candidate was a candidate within the meaning of s. 3 (1) of the Organic as elaborate by the decision in Allan Ebu v. Roy Evara and many cases that have adopted and applied it with approval. The particulars should amongst others included clear pleadings as to the date when the Writ for the relevant electorate was issued, the date when the winning candidate became a candidate by reference to when he paid his nomination fees, when his nomination form in the correct form was accepted by the relevant Returning Officer, when did the winning candidate make a public announcement of his or her candidature and when did the polling period commence for the relevant electorate. Proceeding on that basis, I accepted the Respondents argument that, the definition of the term “candidate” necessarily excludes intending candidates and sitting Members of Parliament who are yet to complete the process of nomination and become a candidate following the issue of a Writ.
40. Applying the foregoing principles of law, I found the petition in the present case failing to plead the essential elements pointing out to the First Respondent being a candidate within the meaning of s. 3 (1) of the Organic Law and for the purposes of properly pleading the alleged acts of bribery. If anything is clear from the minimal pleadings, it is the fact that the alleged acts of bribery took place well before the issue of the relevant Writ and well before the First Respondent became a candidate. Proceeding on that basis, I decided to hold that the allegations on bribery against the First Respondent in the present case were well before the First Respondent became a “candidate” within the meaning of s. 3 (1) of the Organic Law. This meant that the allegations of bribery were incompetent or improper grounds for an election petition.
41. Additionally, I noted that the allegations of bribery did not clearly and specifically plead the essential elements of the purposes of giving the various amounts of money to the various people. The only allegation there was the allegation in pidgin “kisim na givim lo Maru”. The translation given in the petition is “take the money and vote for Maru”. However, my understanding of the phrase in Pidgin does not match the translation in the petition. Without further pleading, this phrase in my view suggests “take it and give it to Maru”. To form the foundation for an allegation in bribery more clarity and the context with the precise words used and such words suggesting only the essential element of the purpose of giving the money was to cause the receivers of the monies to vote for the First Respondent or for them to vote against another candidate or not vote at all to influence the election outcome in the First Respondent’s favour had to be pleaded but was not done here.
42. I had the present case contrasted with an allegation of bribery in the petitioner’s earlier case of Peter Wararu Waranaka v. Gabriel Dusava[27] where the Supreme Court considered certain evidence of bribery in the following terms:
“The First Respondent drove towards Paringu and said: “Hei, olsem wanem na yu no laik kam stap wantaim mipela ol liklik lain na stap wantaim Dusava?” (Hey, why do you not want to stay (support) with us little people and you stay with (support) Dusava?) Paringu did not respond. The First Respondent then moved closer to him and slipped K50.00 cash into his hand, stared at him and said: “Yu holim dispela moni na tingim mi” (You take this money and think of me.)”
43. The Supreme Court, comprising of late Gabi, Lay JJ. and myself arrived at the view that this evidence was not sufficient to support a finding of bribery against Mr. Waranaka who was then the winning candidate in the relevant election. But for the reasons the Supreme Court gave in coming to that decision, this evidence would appear to be close to establishing a case of bribery. In the present case however, the pleadings were so vague or did not have enough of context given to enable only an inference of bribery for the purposes of influencing the election outcome in favour of the First Respondent.
44. These factors favoured a finding of the petition failing to plead the allegations of bribery with sufficient particulars to render the petition competent. Accordingly, I upheld the objection to the competency of the petition on this basis. This formed the third ground for my decision to dismiss the petition.
(4) Failure to properly plead a case of illegal acts
45. Further, learned Counsel for the Respondents correctly pointed out also that the pleadings of alleged bribery demonstrated clearly that, if at all, the alleged acts of bribery were committed by persons other than the First Respondent. That in my view took the petition outside of the petition being based on bribery against the First Respondent pursuant to s. 215 (1) of the Organic Law which reads:
“(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.”
46. Instead, the pleadings on bribery in this case brought into application the provisions of s. 215 (3) of the Organic Law. Counsel for the Respondents submitted, and I accepted that, the various allegations of bribery could be treated as illegal acts by persons other than the winner of the Yangoru Saussia Open Electorate in the 2017 National Elections. Section 215(3) of the Organic Law on Elections reads:
“(3) The National Court shall not declare that a person returned as elected was not duly elected or declare an election void—
(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”
47. This necessitated specific pleadings that each alleged acts of briberies, or illegal acts were carried out by servants and agents
of the First Respondent and each of the acts were carried out with the First Respondent’s “knowledge or authority”.
As already noted, the pleadings clearly alleged that each of the 19 acts of alleged bribery were committed by third parties. There
is no pleading that the First Respondent was personally involved in the commission of the alleged acts of bribery. The only pleadings
that try to connect the First Respondent to these alleged acts of bribery is the phrase:
“These acts of bribery were done with the full knowledge and authority of Richard Maru”.
48. This kind of pleading is a conclusion. Conclusions mean nothing and cannot advance a petitioner’s case any further unless, the basis of such conclusion is pleaded with sufficient particulars. The Petitioner was obliged to plead the facts which formed the foundation for the conclusions pleaded. The decision in Sir Peter Lus vs. Gabriel Kapris[28] by the Kapi DCJ (as he then was), is on point. There in a case of an allegation of bribery by a person other than the winning candidate said:
“...so far as the allegation of bribery is against a person other than the First Respondent, the Petition pleaded that the bribery was carried out with the knowledge and authority of the First Respondent but failed to plead any facts to support this allegation.
Counsel for the Petitioner referred to the pleading under the heading “Conclusion”. This is of no assistance to the Petitioner. This concluding pleading does not set out any base facts to support the allegation that the First Respondent had knowledge or gave authority for the acts of bribery alleged.”
49. Further, the Petitioner had to also plead that the alleged acts of bribery or illegal acts had the effecting of affecting the “result of the election” and “that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.” This was the subject of the first reason for my finding the petition incompetent. The discussion there equally applies here.
50. Proceeding on the basis of the case authorities on point and the lack of the kind of pleadings required, I accepted the Respondent’s submission that the Petitioner has not pleaded the base facts to support the allegation that the First Respondent had full knowledge and authorised the acts of bribery in order to ground the offence of bribery within the ambit of s. 215(3) of the Organic Law. This meant that a possible treatment of the allegations of bribery as pleadings falling under s. 215(3) was impossible on the Petitioner’s pleadings. Consequently, I found that these grounds of the petition were incompetent even for the purposes of allowing the petition to proceed under s. 215(3) of the Organic Law, notwithstanding any pleading in the petition for us to treat the allegations of bribery in the alternative coming under s. 215(3) of the Organic Law. This formed the fourth basis to find the petition incompetent and a reason to have the petition dismissed for incompetence.
(5) Undue Influence
51. Having dealt with the grounds of the petition based on the 19 allegations of bribery, I then turned to a consideration of the allegation based on undue influence. Section 102 of the Criminal Code provides for the offence of undue influence in the following terms:
“A person who—
(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector—
(i) in order to induce him to vote or refrain from voting at an election; or
(ii) on account of his having voted or refrained from voting at an election; or
(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election.”
52. The relevant case authorities on point starts with the decision of the then Chief Justice Frost in the case of Neville Bourne v. Manasseh Voeto[29]. There the learned Chief Justice said at page 803:
“It seems that the elements of s.102(a), are first that to be guilty of undue influence, so far as the sub-paragraph is relevant to this case, a person must be shown himself to have done or threatened to do any injury or to have caused or threatened to cause any detriment of any kind to an elector. Second, it must be shown that the purpose was in order to induce (an elector) to vote or refrain from voting at an election.
Does this refer to the question whether the elector votes or does not vote or does it refers to the manner of voting? As will be seen it is unnecessary for me to decide this point but I am inclined to the view that an intention to influence the elector or vote in favour of a candidate or to refrain from voting against him, would fall within this section.
Turning to s.102(b) what has to be shown, so far as is relevant, is that a person by fraud prevented or obstructed the free exercise of franchise by an elector, and it is quite clear in my opinion that fraud does include a false statement made by a person to an elector known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it.”
53. Recently, the Supreme Court in its decision in Sir Arnold Amet v. Peter Charles Yama, reiterated the law when it said:
“To prove the allegations of undue influence under s. 102(b) of the Code, (read together with an illegal practice under s. 215(3)(b) of the Organic Law), the petitioner must plead in clear, concise and sufficient terms:
(i) The particular ground relied on and whether under s. 102(b), the winning candidate (Sir Arnold Amet) used force or fraud to induce or refrain an elector from voting at the election.
(ii) If fraud is relied upon, it must be further pleaded that, “a false statement was made by a person to an elector, known to be false or without belief in its truth or careless whether it is true or false, with the intention that the elector should act on” Bourne v. Veoto [1977] PNGLR 298 at 303.
(iii) The inducement or illegal practice by the winning candidate was likely to affect the election results and show the relevant number of votes accrued by the winner and the runner up to determine whether or not the result was or would have been affected.
(iv) It is just that the candidate should be declared not duly elected or that the election should be declared void.”
54. I had occasion to look at the issue of undue influence in the case of Ludger Mond v. Jeffery Nape[30]. There I said:
“It is obvious to me that in order for there to be a case of undue influence, there must be some force, threat or fraud involved for the purposes of securing votes, an election victory by a candidate or otherwise interfere with the proper conduct of elections.”
55. Then in an answer to the question of how a petition based on undue influence must be pleaded, I cited with approval what Sawong J. (as he then was) said in his decision in Charles Luta Miru v. David Basua & Ors.[31] There, his honour said:
“... because an election petition is a very serious matter, because of the serious charges and consequences that petitions entail, it is certainly necessary that any ground alleging a criminal offence must state all relevant material facts to establish such an offence. That includes the necessity to spell out in clear and precise terms facts constituting the elements of the offence.
Thus, in my view, in the case of undue influence, as well as the specifics of the particular allegation, such as names, numbers, dates, places there must be allegation that a particular or named person used force or threats on a named person; an elector. In other words, the pleading must not only include the specific allegations of undue influence but must also go further and state the name of the person who used the force or threats and the name of the victim and state whether he or she is or was an elector. The pleading must also state whether the action complained of was or were intended to influence the elector to vote in favour of a Candidate or to refrain from voting against him.”
56. From these, it should be clear that the following are the essential elements that must be pleaded in an election petition that alleges “undue influence”:
A person who either:
(a) uses or threatens to use any force or restraint;
(i) does or threatens to do any temporal or spiritual injury; or
(ii) causes or threatens to cause any detriment of any kind to;
(iii) an elector;
(iv) to induce him to vote or refrain from voting at an election; or
(b) by fraud or such other means;
(i) prevents or obstructs the free exercise of the franchise; or
(ii) compels or induces;
(ii) an elector to vote or refrain from voting at an election.
57. These essential elements would be pleaded if the pleadings in a petition is based on undue influence. Of course, a choice as to be made whether undue influence is alleged under s. 102 (a) on grounds of “force or threats of force or under 102 (b) on grounds of fraud. For the former, the pleading must:
(a) describe the force or threat used;
(b) state the precise time, date and place where the force was exerted, or the threat was issued;
(c) described force or threat caused or was capable of causing:
(i) a described temporal or spiritual injury; or
(ii) a described detriment;
(d) state that the force or the threat described or pleaded with its consequences were directed at a named person;
(d) state with such particulars as a necessary to identify a named person and that person was an elector in the relevant electorate; and
(c) the aim of the stated force or threat was to induce the named elector to vote for the winning candidate or refrain from voting to facilitate an election outcome that was favourable to the winning candidate.
58. Similarly, if the undue influence alleged in an election petition was by way of a fraud, then the pleadings should:
(a) provide a description of the fraudulent act with its specific base facts disclosing the alleged fraudulent act;
(b) state the precise time, date and place where the described fraudulent act occurred;
(c) provided a description of how the fraudulent act prevented or obstructed the free exercise of the franchise; or
(d) describe how the fraudulent act compelled or induced a named person;
(e) the named person was an elector in the relevant electorate; and
(f) the aim of the fraudulent act was to compel or induce the named elector to vote for the winning candidate or refrain from voting to facilitate an election outcome that was favourable to the winning candidate.
59. Where as in this case, an allegation of undue influence is not of the wining candidate but a person other that the wining candidate, it is not sufficient to plead that the actions of a third party was with the knowledge and authority of the First Respondent. Instead, a petitioner must also show by appropriately pleading facts which disclose the winning candidate authorising, procuring or counselling that which were done by a third party on his behalf. The decision of the then Deputy Chief Justice Sir Mari Kapi in the case of Sir Peter Lus v. Gabriel Kapris, which I referred to and included in the foregoing discussions is instructive.
60. In the present case, the only pleading under the heading of “undue influence” was in paragraph 2 (a) to (g). The allegation concerned the presentation of a truck to the Yangoru Secondary School on 3rd May 2017. A Hino truck was the subject of the alleged presentation. That event is alleged to have proceeded with a convey of vehicles with people chanting repeatedly “Maru, Maru, Maru, Maru and Maru”. Then as the convey of the vehicles got closer to the school, the chanting got louder and turned to “Maru Power, Maru Power, givim long em, eksen Minister.” Further it is alleged that before the arrival of the Hino truck, the Yangoru District Administrator and Chairman of the School’s Board of Governors, Mr. Fanston Yaninen came to the school in his official vehicle and waited for the Hino truck to arrive. Eventually, the Hino truck with the school’s name clearly written in front and decorated with balloons in different colours arrived. As the Hino truck got to the school gate, the crowd shouted “Maru pawa, givim long em.” The crowd continued to build up and the occasion turned into a political campaign rally. The acting chairman of the school board and the deputy and acting principal of the school a Mr. Philip Pena and others who are servants and agents with the full knowledge and endorsement of the First Respondent used their respective positions to “induce and influence the students and parents to vote for the First Respondent” spoke on the occasion. Mr. Pena was heard saying “Bifo Peter Wararu mekim wankain, nau Maru mekim”.
61. The pleadings go on to say, after Mr. Pena had spoken, the students sang a song for the First Respondent with the lyrics “Ol pipol, sumatin na papamama taim yu makim x bilong yu, tingim na givim vot bilong yu long eksen Minister Richard Maru.” At the end of the singing, the school driver was directed by the acting principal and chairman of the school board to load students for Wingei and Warabung Villages and complete the campaign trip for the First Respondent. The allegations, then alleged that these actions “induced and had undue influence on the voting student population and their parents to vote for the First Respondent with overwhelming majority as reflected in the results of the counting” and lists 6 counts with their census areas and the number of votes counted listed.
62. I had difficulty finding these pleadings amounting to an allegation based on undue influence but one closer to bribery. Be that has it may, the pleadings fail to plead or disclose the following important matters:
(a) the First Respondent was present at the ceremony;
(b) how the third-party actors were the servants and agents of the First Respondent;
(c) the First Respondent bought the vehicle with the relevant facts covering that transaction, namely, the date of the purchase, where and who from and the method or form of payment;
(c) the base facts demonstrating how the First Respondent authorised, procured or counselled the third-party actors and they acted with the First Respondent’s knowledge;
(d) total number and names of the students and their parents;
(e) which of the unnamed students and their parents were on the common roll and hence electors;
(f) the base facts demonstrating and supporting the allegation in the pleadings that the alleged event “induced and had undue influence on the voting student population and their parents to vote for the First Respondent with overwhelming majority”;
(g) the total number of votes respectively collected by the First Respondent, his runner up and the winning margin at the final count;
(h) the total number of votes collected by the First Respondent as a result of the event alleged; and
(i) how the total number of votes collect by the First Respondent affected the winning margin and how likely was it that the ultimate results of the election was or would be affected; and
(j) how or why is it just that the First Respondent should be declared not duly elected or that the election should be declared void
63. These were serious defects in the petition. Based on these deficiencies in the pleadings, I decided to uphold the objection to this ground of the petition. This formed the fifth reason for my decision to uphold the objections and order a dismissal of the petition.
(6) Time bar Issue
64. Having dealt with the first category of objections to the competency of the petition, I then turned to the second category of incompetency of the petition generally. Under this category of the objections I dealt firstly with the objection based on the allegation of the petition being filed out of time. The facts giving rise to this ground of the objection was simple. An endorsement on the Court file and the petition itself showed the following:
“Dated: 30th August 2017.
Filed: 31st August 2017”
65. There is also the following endorsement on the Court file and the petition:
“Dated 30/08/17 at 5:30pm
Document No. 1
Circuit Court WWK
[signed]”
66. The Respondents claimed that the petition was filed outside the 40 days limit prescribed by s. 208(e) of the Organic Law. This was based on the endorsement on the Court file and the petition itself. They then argued that, the time for the purposes of s. 208(e) ran from the date of the declaration of the results of the election of the Yangoru Saussia Open Electorate, which was on 21st July 2017. That being the case, they argued that the 40th day expired on 29th August 2017. Given that, they argued that the petition was filed 2 days out of time, if we went by the endorsement on the petition that it was filed on 31st August 2017. If, however, we were to go by the Petitioner’s argument that his petition was filed on 30th August 2017, it was filed one day out of time.
67. In support of their argument, the Respondents rely on the decision of the Supreme Court in Kelly Kilyali Kalit v. John Pundari and The Electoral Commission[32]. There, the Supreme Court noted that, the case concerned an issue regarding the date when the election result for the Kompiam Ambum Open Seat was declared. The petitioner, Mr. Kalit alleged the declaration was on 05th July 1997 after the National General Elections in that year. However, the winning candidate, alleged and proved by appropriate evidence, which included a copy of the Writ which clearly showed that the declaration was made on 04th July 1997. Accordingly, the trial judge, Salika J. (as he then was) found that the petition was filed outside the prescribed 40 days under s. 208(e). His Honour counted the 40 days from the date of the declaration, namely, 04th July 1997. On review, the Supreme Court found no error in the findings and decision of the National Court and dismissed the review application.
68. The decision in Kelly Kalit v. John Pundari, has been followed by many subsequent decisions of the National Court. One of the first cases to do that was by the decision in Labi Amaiu v. Andrew Mald and Cyril Retau and the Electoral Commission of PNG[33]. There the late Chief Justice, Sir Mari Kapi held:
“The proper approach is as adopted by Salika J and approved by the Supreme Court in Kelly Kilyali Kalit v. John Pundari and Electoral Commission (supra). The issue of when the result of the election was declared is a question of fact and needs to be determined by evidence.
20. In this matter, I did not have to hear evidence on the issue as it was accepted by all parties that the result of the election was declared on the 24 July 2007. The 40 days is to be computed from the day of declaration (that is 24 July). This method of computing the 40 days as I have pointed out before, can be deducted from the Supreme Court decision in Kelly Kalit v. John Pundari (supra).”
69. Earlier in Dr Benedict Pisi v. Sam Akoitai and The Electoral Commission[34], Sawong J. (as he then was), arrived at a similar view on the reckoning of time under s. 2018(e). His Honour held:
“From the foregoing, I find that the declaration for the Central Bougainville Open Seat was made on 1st July 1997. It follows from this finding of fact that the 40 day time limitation commenced to run from that day (i.e. 1st July, 1997) and ended on 10 August, 1997. The petition in this case was dated 11 August, 1997. There is no notation on the cover or on any part of the Petition as to when it was filed. However, there is a receipt issued by the National Court, which is dated 11 August, 1997. On this basis (sic) infer that the Petition was in fact filed on 11 August 1997. That being the case, there is no doubt that the Petition was filed outside the time period prescribed by law.”
70. Very recently in Labi Amaiu v. John Kaupa[35], his honour Makail J took a different view. His honour was of the view that:
...the date of declaration is not inclusive for the purpose of computing the 40 days. The time limit of 40 days starts to run the following day from the date of declaration. In this case, it ran from 29th July and expired on 6th September. The petition was filed on 6th September. It was filed within time.
71. His honour was of the view that, his view was fortified by the decisions in Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission[36]: and Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission[37]:
72. As his honour noted, the first was a National Court decision. There the date of declaration of the result was 19th July 2012. Mr. Kaiabe filed his petition on 27th August 2012. Then on the next day, 28th August, he filed an amended petition. The Court computed 40 days from the date of declaration of 19th July and concluded that, the amended petition was filed on the 41st day, which was one day late. It was held that the amended petition was filed out of time and incompetent. Accordingly, the petition was dismissed. Aggrieved by that decision, Mr. Kaiabe sought a review of that decision by the Supreme Court.
73. In his ruling on the application for leave, Kirriwom J sitting as a single Judge of the Supreme Court held that the calculation of 40 days from the date of declaration of 19th July was wrong. The reckoning of time should have started on the following day which was 20th July 2012. Hence, His Honour found there was a clear error of law which would have resulted in the petition been re-instated. However, leave was refused because the pleadings were bad.
74. Makail J., made the observation that the single Judge Supreme Court decision in Kaiabe’s case was consistent with the literal interpretation of s. 208(e) of the Organic Law on Elections and represents the correct legal position in terms of computing the time limitation of 40 days to file a petition. At the same time, His Honour was of the view that the decisions in Kelly Kalit and Labi Amaiu are distinguishable on their facts. According to His Honour, in the Kelly Kalit matter, which decision was followed by the decision in Labi Amaiu case, was a case in which there were two conflicting dates on the date of declaration. One was allegedly the 4th July 1997 and the other was 5th July 1997. This issue needed to be resolved before computing the 40 days. On resolving that issue, the Court had to decide if the petition was filed within time or out of time. Having found for 04th July 1997, the Court also found the petition was filed out of time. Accordingly, there was no contest on the computation or the reckoning of time for the purposes of s. 208(e). The same was the case in the Labi Amaiu case.
75. I was not provided with a copy of the Supreme Court decision Makail J., referred to in his honour’s decision in the second of the Labi Amaiu case. A search for a copy of the decision has not yielded any fruit. Counsel for the petitioner, in the present case did not assist with any published Supreme Court decision on point which takes a different view to the one expressed in the Kelly Kalit v. John Pundari matter. Given that, I ask learned counsel for the petitioner, if the National Court has any power to override any Supreme Court decision on point. Counsel correctly answered the question in the negative. Hence, I decided to go by the decision of the Supreme Court in the Kelly Kalit vs. John Pundari case. In so deciding, I had regard to the specific wording of the provisions of s. 2018(e) of the Organic Law which reads as follows:
“A petition shall—
...
(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).”
(Underlining mine)
76. I also had regard to the decision of the Supreme Court in Biri v Ninkama which settled the principles of law in relation to the interpretation of the Organic s. 208 (e) and s. 3 (2) and Constitution Sch. 1.1 and Sch. 1.16. There can be no dispute as to what those principles are as they are now well settled and accepted. The Organic Law being a Constitutional Law, the provisions of s. 11 of the Interpretation Act (Chapter No.2) which applies to interpretation of ordinary statutes, do not apply to interpreting the provisions of the Organic Law. Instead, Constitution Schedule 1 (which includes Sch. 1.1 and Sch. 1.16) applies to interpreting the provisions of the Organic Law, such as s. 208(e). The combined effect of Constitution Sch. 1.1 and Organic Law s. 3 (2) and s. 208 (e) is a prescription of a mandatory time limit of 40 days within which a petition against an election result could be filed.
77. There can also be no dispute that the time limit of 40 days imposed by s.208 (e) of the Organic Law, includes all seven (7) days of the week, that is, Monday through to Sunday and this means, both the five (5) weekdays or working days and the two week-ends. This is why Rule 2 (2) of the Practice Directions for Presentation and Conduct of Elections N/C 2/97 issued by the National Court on 27 June 1997 provided that “the reckoning of the time limit in sub-section (1) (40 days limit) includes all days of the week, and the time limit cannot be extended”. The current Election Petition Rules 2017 does not have a similar provision. This cannot be of any consequence as the Organic Law as interpreted and applied by the Supreme Court led by the decision in Biri v. Ninkama is very clear on this point.
78. Going by this clear law, I was respectfully mindful of the fact that following the view expressed by his honour Makail J, would be taking us back to what s. 11 of the Interpretation Act provides for, which the Supreme Court in the Biri v. Ninkama case and the long list of Supreme Court decisions that follow that decision clearly and have repeatedly held, does not apply to s. 208(e) of the Organic Law. For clarity in understand I reproduce the provisions of s. 11(1) which read as follows:
“11. Computation of time.
(1) In computing time for the purposes of a statutory provision, a period of time from—
(a) a certain day; or
(b) the happening of an event; or
(c) the doing of an act or thing,
shall be deemed to be exclusive of the certain day or of the day on which the event happens or the act or thing is done.”
(Emphasis supplied)
79. Further, I was also mindful of the fact that all decisions of the Supreme Court are not binding on itself but all lower courts are bound by the decisions of the Supreme Court. That does not, however, mean that the Supreme Court can arrive at decisions that contradict each other. In Paru Aihi v. Peter Isoaimo, I discussed in detail with the full agreement of my brother Yagi J., who was one of the other members of the Court, the law governing the question of when and how the Supreme Court could depart from its earlier decisions or judgment. Based on the numerous authorities discussed and considered in that judgment I summarized the law as follows:
“27. A careful consideration of the above authorities makes it clear that:
(a) the Supreme Court is not bound by its own earlier decisions;
(b) but in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart for (sic) its earlier decision;
(c) departures within a short space of time is undesirable and should not be encouraged; and
(d) departures are permissible only in exceptional circumstances where:
(i) the earlier decision clearly misinterpreted, misconceived, mistook or misunderstood the law which requires correction;
(ii) the law pronounced or stated in the earlier decision is no longer appropriate and applicable to the current prevailing circumstances and needs of the country; and
(iii) as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision. ”
80. It should follow therefore that, unless the decision of the Supreme Court in the Kelly Kalit v. John Pundari as well as the decision in Biri v. Ninkama and all the long line of cases that follow them are reversed or altered in accordance with the principles summarize in the above passage, Kelly Kalit v. John Pundari and Biri v. Ninkama are the law on point. With respect, the decision in the second Labi Amaiu case and the unpublished single Judge decision of the Supreme Court referred to in that decision, run contrary to establish principles of law. This Court is bound to follow the law has represented by the decisions of the Supreme Court in Kelly Kalit v. John Pundari and Biri v. Ninkama.
81. Having decided on the law, I turned to the relevant facts in this case. Relevantly, I found there was no issue that the declaration for the winner of the Yangoru Saussia Open Electorate in the 2017 National Election was made on 21st July 2017. The dispute was in the reckoning of time for the purposes of s. 208(e) Organic Law and when the petition was filed. The law as noted dictated a counting of the days from the date of the declaration being 21st July 207 in accordance with the decision of the Supreme Court in the Kalit vs. Pundari case. Going by that count, the 40th day fell on 29th August 2017. That was the deadline for the filing of the petition. If however, contrary to the law, we count the 40 days from 22nd July 2017, the 40th day expired on 30th August 2017. Then if we went by the latter and accept that the petition was filed on 30th August 2017, the petition would appear to have been filed within time. But this was not how the record read. The petition reached the registry at 5:30pm on 30th August 2017, which was well past the registry closing time of 4:06pm. This meant that the filing of the petition could not and did not take place until the next working day which was 31st August 2017. This is again confirmed by the relevant endorsement on the petition and the Court file. That being the case, I found that the petition was file out of time by 2 days. At the same time, I gave some thought to the possibility of the petition being filed on 30th August 2017 notwithstanding the facts I found. This would have rendered the petition still filed out of time by 1 day. For these reasons, I found the petition failed to meet the mandatory requirements of s.208(e) Organic Law which rendered the petition incompetent. This formed the sixth reason to uphold the object to the competency of the petition and order its dismissal.
(7) Inconsistent prayer for relief
82. The next basis for the objection to the competency of the petition concerned the pleadings of the reliefs sought. The Respondents
claim that a petitioner in an election petition has the duty to plead the reliefs he or she is seeking in a manner that is clear,
coherent and logical. Here, they argue that the Petitioner failed to observe this requirement and has prayed for inconsistent and
therefore unclear, incoherent and illogical reliefs. Accordingly, they submitted for a dismissal of the petition.
83. I was cognisant of the fact that s. 212 of the Organic Law is the most relevant. This provision provides as to the kinds of powers the Court has when dealing with election petitions in the following terms:
“212. Powers of court.
(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—
(a) adjourn; and
(b) compel the attendance of witnesses and the production of documents; and
(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d) order a re-count of ballot-papers in an electorate; and
(e) examine witnesses on oath; and
(f) declare that a person who was returned as elected was not duly elected; and
(g) declare a candidate duly elected who was not returned as elected; and
(h) declare an election absolutely void; and
(i) dismiss or uphold a petition in whole or in part; and
(j) award costs; and
(k) punish contempt of its authority by fine or imprisonment.
(2) ....
(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.”
84. Then in the case before me, I noted that, in his prayer for relief, the Petitioner pleaded as follows:
“D. THE RELIEF to which the Petitioner claims to be entitled are:
85. I was aware that, this was not the first time, issues on properly pleading the reliefs sought in an election petition has arisen. The issue was the subject of several judicial considerations in the past. The decision of my brother Yagi J., in Conrad Haoda v. Aide Ganasi[38], is one such case. There, the petitioner’s prayer for relief read:
“2. THE RELIEFS SOUGHT BY THE PETITIONER ARE AS FOLLOWS:
I. An Order that the Election Petition be upheld.
II. A Declaration that the First Respondent who was Returned as elected was not duly elected; and
III. A Declaration that the Petitioner who was duly elected be returned as elected
IV. Alternatively, a Declaration that the 2012 are null and void.
V. The Security Deposit of K5,000.00 be refunded to the Petitioner.
VI. Costs be awarded to the Petitioner.”
86. As is the case in the present case, the First Respondent in that case, objected to the reliefs claimed by the petitioner. The general complaint was that, the reliefs have not been pleaded in a coherent and logical manner and were otherwise confusing. Specifically, the First Respondent argued that when reliefs II and III were read together, they contradicted each other and were thus confusing. His honour in agreeing with those submissions reasoned:
“The petitioner submits that relief I is perfectly in order because it is well within the normal jurisdiction of the National Court to make such orders. I am prepared to accept that argument by the petitioner only in cases where the National Court is exercising its’ ordinary civil jurisdiction. However, this is not the case here. The Court in this instance is exercising a special jurisdiction given by a constitutional law. The Court is empowered to grant specific relief by way of declarations and orders authorised under the Organic Law. The specific types of orders are provided in ss. 215 and 218(1) of the Organic Law. This relief is not a recognised remedy or relief that is available under s. 212 of the Organic Law. This view is consistent with the reasoning in Greg Mongi v Bernard Vogue (1997) N1635. This relief is not a recognised one and it’s not available to the petitioner in so far as it relates to proceedings concerning election petition. It is struck out as it offends s. 208(b).”
87. As for reliefs II and III, His Honour noted the petitioner relied on Woods J.’s decision in Peter Launa v. Yauwe Riyong[39]. In that case, Woods J., spoke in terms of there being “no magic in the words used in the relief. Going by that judgement, the petitioner submitted that reliefs II and III must be read in a logical order in that relief II if granted, will give meaning and effect to the relief III. In rejecting that argument, his honour Yagi J. said:
“39. With respect I have read and re-read both reliefs a number of times and have great difficulty comprehending its meaning and effect. In my view relief III is badly drafted and has no meaning. It is not one of the reliefs that is expressly provided in ss. 212, 215 or 218.
40. In Greg Mongi case (supra) Injia J (as he then was) took the view that a petition must plead the relief that he or she is entitled to by law. He or she cannot seek relief that he is not entitled by law. That view is based on s. 208(b) of the Organic Law which provides that the petition must specify the relief he or she seeks that he or she is entitled to. I agree with the decision in Greg Mongi, because that is the imperative of s. 210 of Organic Law. If a petition does not plead the correct relief that he or she is entitled, then the petition does not comply with s. 208(b). The Organic Law is part of constitutional law and it must not be left open to misuse in the context of the reliefs provided by that law. In my view the law does not allow a petitioner to claim any kind or all manner of relief that he thinks he is entitled. He is restricted to the reliefs provided by law. The same reasoning applies to relief IV. For these reasons reliefs I, III and IV are incompetent. They offend against s. 208(b) and are therefore incompetent. They are struck out.”
88. Canning J., in Soro Marepo Eoe v. Mark Ivi Maipakai, questioned the correctness of the decision in Greg Mongi’s case by taking a critical look at the decision of the Supreme Court in the matter of Re William Wii[40] which was the basis for the decision in the Greg Mongi case. This is how His Honour addressed the issue:
“In the case of Re William Wii SCR No 45 of 1994, 26.07.94 (unreported) it was held that to comply with 208(b) of the Organic Law a petition that is grounded on bribery or undue influence under Section 215(1) of the Organic Law must in the claim for relief refer to the precise form of words in Section 215(1). Mr Paraka was unable to provide a copy of this judgment (though he assured the court of its authenticity as he said that he appeared as counsel in the case and put the argument to the Supreme Court, which was accepted) and unfortunately it remains unreported, but I have located a reference to key parts of it in the decision of Injia J as he then was in Greg Mongi v Bernard Vogae (1997) N1635. His Honour quoted the Supreme Court in Re William Wii as stating:
‘Section 208(b) of the [Organic Law] says that ‘the petitioner shall specify the relief to which the petitioner claims to be entitled’. We are of the view that that does not mean that the petitioner can select a relief to his own liking. Certainly in Section 212 of the [Organic Law] the Court has certain discretionary powers, one of which is to ‘declare that a person who was returned as elected was not duly elected’. But we are satisfied that when a section such as the said 215 spells out the relief precisely then that is the relief that the petitioner is ‘entitled’ to in the event that he is successful. He cannot ask that a person be found to be not duly elected when the section says that it be found that his election be declared void. Where bribery and undue influence is committed and proved then the Court can only find that his election be declared void.’
89. His honour went on to note that Injia J “held that the decision in Re William Wii was binding on the National Court and proceeded to dismiss the entire petition.” At the same time, his honour noted with interest that “in David Lambu v. Peter Ipatas[41], Sakora J took a different approach, taking the view that Re William Wii was decided per incuriam (wrongly, through want of care, in ignorance of the law) and that it was not binding on the National Court. Further, his honour went on to correctly note that “the law on this issue took another turn in Korak Yasona v. Castan Maibawa[42] when the Supreme Court, agreeing with Sakora J in Lambu, held that Re William Wii was wrongly decided.” As his honour noted, “Yasona supports the proposition that the exact relief referred to in Section 215(1) does not have to be sought in the petition (Assik Tommy Tomscoll v Ben Semri (2003) N2349).” Furthermore, Cannings J., also correctly noted that, “the conflict in authorities was noted but not resolved by the Supreme Court (Kapi DCJ, Sheehan J, Jalina J) in Application by Ludwig Patrick Shulze[43] as it was not necessary to decide the issue.” Then in the end, his honour decided to “follow the most recent decision” and in any case spoke in favour of the approach in Korak Yasona. At the same time, his honour “acknowledge the importance of strictly complying with the requirements of Section 208 of the Organic Law but” he felt “that if too much attention is focussed on the need to stick literally to the words of the Organic Law we” would “lose sight of the real purpose of election petitions” which is “to allow people who are genuinely aggrieved for good reason with the result of an election to challenge the result in court.”
90. Applying the law to the case then before him, his honour Cannings J., concluded:
“... though it might be desirable it is not necessary for a petition, to the extent that it is based on Section 215(1) of the Organic Law, to claim relief precisely in terms of Section 215(1) (that the candidate’s election ‘shall be declared void’). It is sufficient that the petition seeks relief in terms of one of the paragraphs in Section 212(1) (powers of court) of the Organic Law, eg a declaration that the person ‘who was returned as elected was not duly elected’ (Section 212(1)(f)) or a declaration that the election is ‘absolutely void’ (Section 212(1)(h)). The petitioner has in paragraphs 33(d) and 33(f) adequately sought relief under Sections 212(1)(f) and (h). There has been no failure to comply with Section 208(b) of the Organic Law. The second ground of objection to the petition is refused.”
91. I was also mindful of the fact that, later in Nathan Piari v. Peter Ipatas[44], Makail J., took what might appear to be a liberal approach. There his honour observed and held:
“114. The essence of the claim for relief is a declaration that the election or return of and in respect of the Enga Provincial electorate has failed and a supplementary election be conducted. If a by-election is to be held, it must be conducted by officials outside the Enga Province. I reject the respondents’ submission that this relief is incorrect and inconsistent with the Organic Law, section 212(f), (g) and (h). I dismiss the objection as being misconceived because although the relief is not worded in terms of the relief set out in section 212(f), (g) and (h), a grant of a relief is a discretionary matter and the Court is nonetheless competent to grant it once the allegation or allegations are established under the empowering provision: see Nick Kopia Kuman v. Dawa Lucas Dekena & Electoral Commission (2013) N5429.”
92. Having regard to all of these, I decided in favour of the Respondents objections and found the petition incompetent for failing to properly plead the reliefs the Petitioner was seeking. This formed the seventh reason for me to uphold the objections and have the petition dismissed. In arriving at that decision, I accepted the Respondents arguments that reliefs 3 and 4 were the same and relief 8 would follow a voiding of the relevant election. On the other hand, reliefs 5, 6 and 7 would all come under an order for a recount of the ballot papers for the relevant electorate. However, if all the reliefs prayed for are read together a contradiction is immediately apparent between reliefs 3, 4 and 8 on the one side and 5, 6 and 7 on the other. Obviously if the whole election outcome were to be declare null and void there would be no foundation for a recount of the ballot papers. Whilst these are clearly recognised reliefs under s. 212 and or 215 of the Organic Law, the way in which the reliefs are sought are not in any coherent and logical order. For example, if the reliefs for voiding the election and therefore an order for a by election were sought as one set of reliefs and failing the grant of such a relief an order for a recount of the ballot papers were sought with the other consequential reliefs as an alternative that would make sense. That was not how the petition was presented.
93. Whilst I have and continue to subscribe to the liberal views on how election petitions must be treated that liberality in attitude cannot cover for complete failures to properly plead. There are now heaps of case law on how to correct and properly plead in election petition cases. Lawyers and petitioners should read the case law, properly get themselves informed and plead in accordance with the law as elaborated and enunciate by the various Supreme and National Court judgments on point. There can be no excuse for a failure to do that.
94. This becomes critically important especially when it is now settled law from as early as the decision of the Supreme Court in Biri v. Ninkama that there can be no amendment after the expiry of the 40 days limit under s. 2089(e) of Organic Law. That is because as already noted, challenging an election outcome is a serious matter and should not be taken lightly. An election petition is a serious challenge on the wishes of the majority of the voters in an electorate resulting in election of their representative in Parliament.[45] This is why the Supreme Court as already noted said in Biri v. Ninkama:
“An election petition is not an ordinary cause (In The Re Norwich Election Petitions; Birbeck v Bullard (1886) 2 TLR 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.”
95. These sentiments have been repeated by many subsequent cases which have been calling for strict compliances of the requirements of s.208 because of s.210 of the Organic Law on Elections.
(8) Failure to plead attesting witness’ occupation
96. The final ground upon which the petition’s competence turned was in respect of the need to plead the occupation of attesting
witnesses. In this instance, the objection concerned one of the two attesting witnesses namely Roberts David’s occupation.
The relevant pleading states Roberts David’s occupation as “self-employed”.
97. The foundation for this objection was s. 208(d) of the Organic Law. This provision relevantly stipulates:
“A Petition shall-
..
(d) be attested to by two witnesses whose occupations and addresses are stated.”
98. In Raymond Agonia v. Albert Karo, Sheehan J., most importantly spoke of the purposes of having this requirement in the Organic Law in these terms:
“The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located. Accordingly, I believe that the address requirement of the sub-section of that attesting witness should state his normal residential address. The adequacy of the address, however, might well be determined by witness’ personal circumstances, but it should be the best succinct description available. In a large city, it may require street address or even their section, lot number or suburb. In the case of a villager, simply his village.”
99. To this As Injia J., (as he then was) added in Albert Karo v. Lady Carol Kidu[46]:
“To add to that, I find also that the witnesses who sign an Attestation form are effectively saying that the Petitioner is seriously aggrieved by the results of the election and that the facts stated or pleaded in the Petition are true and correct, based on their knowledge. They may be required to give evidence on the veracity of the statements or allegations made by the Petitioner. In my view, their responsibility to the success or not of the Petition is onerous and must be taken seriously. This means that they are to ensure their availability is not in doubt and this is where their addresses stated in the Petition is of importance and relevance.”
100. Specifically, on the use of the term “self-employed” judgments have not been unanimous. In Bryan Kramer v. Nixon Philip Duban (No.2)[47], his honour, Gavara-Nanu J was of the view that:
“...when plain and common sense or logical meaning is given to the adjective “self-employed” it connotes a person working for himself and earning a living or sustaining himself in life by engaging and occupying himself in gainful activities of whatever nature such as gardening, fishing and hunting or a person engaged in a trade or profession, or business and is making a living and sustaining himself. All such engagements or vocations would clearly constitute a person’s occupation. “Self –employed” is an ordinary descriptive term or phrase which should be given its plain and ordinary meaning.
101. Taking this approach, his honour was satisfied that ‘self-employed’ as used in the case before him was sufficient for the purposes of s. 208 (d). Before arriving at his decision, his honour had regard to the following passage from a decision of Batari J in EP No. 75 of 2012, Peter Waieng v. Tobias Kulang and Electoral Commission[48]:
“In this case the generic term, ‘self employed’ falls within the ambit of ‘occupation.’ Stating one’s occupation as ‘self employed’ imparts a common sense understanding and perception of one earning a living, working for himself or preoccupying his time, energy and resources working for himself. He could be a PMV operator, a trade store owner, etc. The description, ‘self employed’ could not mean anything else. It adequately describes the attesting witnesses’ occupation.
I adopt the majority view in Paru Aihi v. Sir Moi Avei (supra) that, the term “occupation” in the context of s. 208 (d) simply means, one’s trade, business or calling; things or activities one does for living....’”
102. As noted in the above passage, the Supreme Court finally came to deal specifically with the issue in Parua Aihi v. Sir Moi Avei. There the Court with a four to one majority defined the term “occupation” to mean:
“one’s trade, profession, business or calling; things or activities one does for a living. A carpenter, lawyer, doctor, an actor or actress, engineer, politician, leader, judge are examples of one’s occupation. It cannot mean one’s place of origin such as Western Highlanders or New Irelander; a linguistic group such as Motuan or Engan; national status such as citizen or non-citizen, and racial origin such as Chinese or African and so on.”
103. Before concluding in those terms, the Court considered the decision in the In Re Herowa Agiwa[49], which thought the issue was very minor and had nothing to do with the merit of the matter. The Court also had regard to the decision of the National Court in Charles Miru v. David Basua and Ors, where the term “villager” was used to describe an attesting witness’ occupation. There, as did the Supreme Court in Herowa Agiwa, the Court thought the issue was trivial. The Supreme Court in Parua Aihi v. Sir Moi Avei correctly decided the issue was not trivial and considered it in detail and came to its decision, in favour of the term “villager” as equating to the term “occupation”. However, I have great difficulty in understanding and accepting the majority decision given their own definition of the term “occupation” as noted above and the detailed discussion of the same issue by the lone dissenting view. As was observed by the dissenting view, when someone says he or she is a villager that person is not talking about is occupation but where he resides.
104. Later in 2013, the Supreme Court was presented with the same issue again in Dr Bob Tawa Danaya v. Ati Wobiro[50]. The Court had regard to the decision in Re Herowa Agiwa (supra) and Puaria v. Lera[51] and found a statement of an attesting witnesses occupation in terms of “Second Secretary to the office of the former Governor Western Province” was sufficient. In the Puaria v. Lera case, his honour Kariko J., found description of an attesting witness’ occupation as “self-employed” was sufficient.
105. In the same year as the decision in Puaria v. Lera, her honour, late Davani J in Apaso Winch L Oibotee v. Benny Allen[52], took the view that describing one’s occupation as “self-employed” was insufficient. In the case before her honour, counsel referred to a decision of his honour Ipang AJ (as he then was) in Sali Subam v. Aide Ganasi (No.1)[53], his honour had ruled that the description of one of the attesting witness’ occupation as “self-employed” was sufficient for the purposes of s. 2018(d). His honour reasoned that such a description means, the person concerned is involved or engaged in private business or is a business man or woman. Her honour, Davani J however did not agree and reasoned:
“...I do not agree with the learned trial Judge in Sali Subam .v. Aide Ganasi ... where he states that when a person lists himself as self employed, he or she is involved or engaged in private business or is a business man or businesswoman. Being self- employed can mean anything. It could also mean that the witness is unemployed but states he is self-employed because he or she could be a street vendor selling betel nuts or store goods. I find the description ‘self-employed’ can be misleading and should not be used to describe a person’s form of employment. A person is either employed or unemployed.”
106. In what appears to be a never end but a on going debate, which I might add is quite unnecessary, I subscribe to the view expressed by Davani J for the reasons she gave as well as the detailed reasons given by the dissenting view in Parua Aihi v. Sir Moi Avei. As the dissenting view in the Parua Aihi v. Sir Moi Avei advocates for the the reasons given therein, the courts should always allow for the ordinary meaning of words employed by Parliament in any constitutional and statutory provision to apply unless a different and technical meaning is prescribed or called for. Ordinarily when someone talks about the subject of “occupation” usually a person’s professional or job calling as described by the Supreme Court in words set out in paragraph 91 above comes to mind. But the term is a broader one and includes a profession. Occupation can thus be defined in terms of the kind of economic activity undertaken by a person regularly for earning money or his or her income. In other words, when someone engages or occupies himself, most of the time, in any economic activity that generates an income which in turn supports that persons living, that activity is known as occupation. An occupation does not necessarily require specialised schooling in a particular stream. Physical or mental both kinds of jobs are included in an occupation. Occupations can be classified into, business, employment and profession. When a person is engaged in any trade, commerce or manufacturing activities, he is said to be doing business. Where a person works for others and gets a fixed and regular income he is said to be in an employment. Finally, when a person renders services to others, by applying his knowledge and skills is called a profession.
107. Having regard to the foregoing discussions, I agreed with late Davani J., who said the term “self-employed” without more is ambiguous and devoid of clarity and fails to indicate the occupation of the witness which must be in terms of a profession or the kind of work or job he does to generate income to support his living. In that context, if at all, the term “self-employed” signifies that a person is employed by him or herself and not by another. Clearly, it falls short of indicating, what he or she does in that “self-employment” setting. A statement in terms for example of “a self-employed electrician” or “a self -employed motor mechanic “or a “self-employed plumber” and so on would be far more accurate and sufficient for the purposes meeting the requirements of s. 2018(d) of the Organic Law. Accordingly, I found the petition failed to meet the mandatory requirement to state precisely and clearly the occupation of Roberts David. This formed the eighth and final reason for my finding the petition incompetent and ordering its dismissal.
108. Before arriving at the above decision, I did take into consideration, learned counsel for the Petitioner’s submission that this ground of the object is not one of the grounds pleaded in the Respondents’ notices of objections. I was however, very mindful of the decision of the Supreme Court in Sir Arnold Amet v. Peter Charles Yama. There the Court held unanimously that:
“The issue of competency concerns the validity of the proceedings and can be raised at any stage of the proceedings. The reviewing court should not refuse to consider an issue of competency because it was not raised in the court below”.
109. That was a case in which Sir Arnold was permitted at the review stage of an issue that should have been raised but not raised in his objection to competency in his notice of objection at the trial level. Justification for this was found in s.210 Organic Law, which clearly states that “proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.” In this case, the particular ground of objection concerns s. 208(d) of Organic Law on Elections.
110. I was also mindful of the fact that the Supreme Court of which I was a part in Paru Aihi v. Peter Isoaimo decided not to follow the decision in Sir Arnold Amet v. Peter Charles Yama for several reasons based on various other earlier Supreme Court decisions. However, the context in both these cases was at the review stage and at the Supreme Court level, unlike the case before me, which is at the trial level and even well before the petition could be progressed to trial. A case that is on point is my own decision in the matter of Steven Pirika Kamma v. John Itanu. There, I spoke in favour of a more liberal approach to election petitions as oppose to a stricter one. But more specifically, I had Respondents to the petition in that case, seeking to include a new or additional ground for their objecting to the competency of the petition. I ruled against that. There the ground sought to be included concerned an allegation of inconsistent pleading in the body of the petition as opposed to any of clearly mandatory requirements especially under ss. 208 and 209 of the Organic Law on Elections. Except in the clearest of cases and has been demonstrated to date by the many cases, whether the requirements under s. 208 (a), (b) are met in any one case may require more detailed and careful consideration. However, again subject to any seriously contested matter whether the requirements under s. 2018 (c), (d) (e) and s. 209 have been meet in any one case would be simple and straight forward matters. As these are condition precedents, the Court would still have to consider if these requirements have all been met. Any failure to meet any of these requirements would obviously result in a petition not being permitted to proceed to trial.
111. In the present case, the issue of whether the attesting witnesses’ address and occupation have been stated as required by s. 208 (d) is a simple and straight forward matter. All the parties could ably address the Court on that issue and the Court could easily consider and come to a decision on it. It did not require much more consideration than the way it has been addressed before me. Hence, I decided to have that ground included in the matters for the Court to consider in the overall consideration of the competency of the petition. Accordingly, I considered that issue and came to a decision on it in the way I had.
In summary
112. In summary, I decided to uphold the Respondents’ objection to the competency of the petition in this petition and have it dismissed. This was based on the petition failing to meet the pre-requisites under s.208 of the Organic Law on Elections in the following two broad categories:
(1) Failing to plead the relevant facts relied upon with sufficient particulars:
(a) each of the essential elements for the grounds based on bribery and undue influence and in particular amongst others, the essential element of the First Respondent being a candidate at the relevant time;
(b) the allegations of illegal practices, errors, omissions and irregularities;
(c) how the First Respondent, had knowledge and or authorised each of the alleged poorly pleaded allegations of illegal practices, errors, omission and irregularities to be committed or being committed by persons other than himself;
(d) winning margin by reference to the total votes secured by the First Respondent, his runner up and demonstrate how the election results were or were likely to be affected by each or all of the poorly pleaded alleged illegal practices, errors, omissions and or irregularities; and
(d) how or why it is just and fair that the First Respondent who was declared the winner of the Yangoru Saussia Open Seat in the 2017 National Elections should be declared not duly elected or his election voided; and
(2) Failing to meet the other mandator requirements under s. 208 of the Organic Law by failing to:
(a) file the petition within the prescribed 40 days after the declaration of the result of the relevant election;
(b) plead the prayer for relief coherently and logically and without contradiction;
(c) clearly state the occupation of one of the attesting witness.
113. I also ordered costs to follow the event in favour of the Respondents and ordered the K5,000.00 deposit to be released in equal
shares to the Respondents.
________________________________________________________________
Mawa Lawyers: Lawyers for the First Objectioner/First Respondent
Harvey Nii Lawyers: Lawyers for the Second Objectioner/Second Respondent
John Alman Lawyers: Lawyers for the Respondent/Petitioner
[1] [1982] PNGLR 342.
[2] (2010) SC 1064.
[3] (2003) N2344.
[4] See for examples of more cases on point: Michael Kandiu v. Hon Powes Parkop (2015) SC1437 John Kekeno v. Philip Undialu (2015) SC1428; Ken Fairweather v. Jerry Singirok (2013) SC1279; Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1251; SC Review No 1 of 1990; Re Recount of Votes [1990] PNGLR 441; and
SCR No 5 of 1988 Applications of Kasap and Yama [1988–89] PNGLR 197.
[5] (1998) SC573.
[6] (2003) N2348.
[7] (2003) N2421.
[8] (1998) SC590.
[9] (2012) N4899.
[10] (2008) N3319.
[11] [1992] PNGLR 563 at 564.
[12] (2003) PNGLR 9.
[13] [1999] PNGLR 232.
[14] (2009) N3718.
[15] (2003) SC727.
[16] See for examples of cases on point: Bourne v. Voeto [1977] PNGLR 298, Luther Akisawa Wenge v. Kelly Naru (No 2) (2013) N5123, Andrew Kumbakor v. Joseph Sungi (2012) N5002, Powes Parkop v. Wari Vele (No 1) (2007) N3320 and Anton Yagama v. George Wan and The Electoral Commission (1997) N1692
[17] (2013) SC1276
[18] For cases speaking on the essential elements of that must be pleaded and proven in a case of an election petition based on an alleged
bribery see: Philip Kikala v. Electoral Commission (2013) SC1295; Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980.
[19] [1992] PNGLR 463.
[20] (2012) N4921.
[21] (2013) N5066.
[22] [1983] PNGLR 201
[23] (1989) N808.
[24] (2013) N5059.
[25] (2014) N5577.
[26] (2013) N5213.
[27] (2009) SC980.
[28] (2003) N2326.
[29] [1977] PNGLR 298.
[30] (2003) N2318.
[31] (1997) N1628.
[32] (1998) SC569.
[33] (2008) N3334.
[34] (1997) N1694.
[35] (2017) N7004.
[36] EP No 37 of 2012 (Unnumbered & Unreported Judgment of 6th March 2015).
[37] SCRev (EP) No 2 of 2015 (Unnumbered & Unreported Judgment of 29th May 2015).
[38] (2013) N5136.
[39] (1997) N1620.
[40] SCR No. 45 of 1994 26.07.94 (unnumbered and unreported).
[41] (1998) N1701.
[42] (1998) SC552.
[43] (1998) SC572,
[44] (2014) N5969.
[45] See for a similar view the decision of Makail J in John Warisan v. David Arore (2013) N5217 (per Makail J)
[46] [1997] PNGLR 28.
[47] (2013) N5213.
[48] (March, 5 & 8, 2013).
[49] [1993] PNGLR 136.
[50] (2013) SC1292.
[51] (2013) N5148.
[52] (2013) N5155.
[53] (2012) N5068.
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